In re Barbara H.

Filed 4/17/07 In re Barbara H. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twissleman II, Judge.

Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.

B.C. Barmann, Sr., County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Plaintiff and Respondent.

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Vallery H. appeals from an order terminating her parental rights (Welf. & Inst. Code,  366.26) to her four-year-old daughter, Barbara.^[1] Appellant contends the court erred by not finding termination would be detrimental to Barbara based either on their parent/child relationship or Barbaras sibling relationship ( 366.26, subd. (c)(1)(A) & (E)). On review, we disagree and will affirm.

PROCEDURAL AND FACTUAL HISTORY

Barbara is the sixth of eight children, born to appellant and her husband. In 2004, when Barbara was two years old, appellant was using methamphetamine while pregnant with twins. She also used methamphetamine in 1999 while she was pregnant with another of her children. Although appellant and her husband agreed to voluntary family maintenance services after the twins birth in July 2004, neither parent took advantage of those services. Meanwhile, other family struggles came to light. Appellant was unable to cope with caring for her eight children and self-medicated with methamphetamine as she was stressed out and could not cope. For the fathers part, he tested positive for THC yet failed to address his substance abuse issues. He was also physically violent towards appellant and their oldest daughter, who was then 11 years old.

As a result, in November 2004, when Barbara was 2 years, 10 months of age, respondent Kern County Department of Human Services (department) detained all of the children and initiated the underlying dependency proceedings. The Kern County Superior Court in turn exercised its dependency jurisdiction over the children under section 300, subdivisions (a) (serious physical harm) and (b) (failure to protect). In December 2004, the superior court adjudged all of the children dependents, removed them from parental custody, and ordered reunification services for both parents.

Due to the large size of the family, the department could not place all of the children in the same foster home. After an initial, short-term, emergency placement, Barbara lived in a foster home with two of her older brothers, ages 10 and 5 years old. The record contains little information about that placement except that it continued for approximately nine months or until August 2005. Meanwhile, all of the siblings saw one another as well as the parents at weekly visits. Initially, the visits were emotional especially for Barbara although the record discloses no further details. Thereafter, through the first six months of services, the quality of the visits was described as very good. Otherwise, the record contains no description of the childrens, and in particular Barbaras, interactions. As of June 2005, the departments social study described Barbara as too young to attend school and likes playing with [her] siblings and dolls.

An effort in the summer of 2005 to increase the length of the parents visits was short-lived. The parents kept some of the children, including Barbara, overnight on one occasion and without the departments permission. Visitation, as a result, reverted to two-hour, weekly supervised visits. Also, the department implemented a requirement that each parent drug test before the scheduled visit.^[2] During previous visits, the parents appeared more than once to be under the influence.

Once again, the record contains little description of the siblings interaction during the visits and no direct reference to Barbara. The individual supervising the visits during the second six-months of services described some of the visits in rather chaotic terms. Other visits were not problematic and the children appeared happy, although each parent experienced difficulties at times controlling all of their children.

By August 2005, the parents made so little progress towards reunification that the department sought a more permanent placement, particularly for Barbara. In August 2005, the department placed three-year-old Barbara and J., her seven-year-old sister, in a foster home where Barbara has since remained. If the parents failed to reunify, the new foster family expressed an interest in providing a plan of adoption for Barbara and J.

It was soon reported, however, that J. was experiencing difficulties. She was below grade level and receiving special tutoring; her social worker requested an assessment of the seven-year-old for learning difficulties. Then, in November 2005, the foster parents reported:

[J.] had wet her bed and tried to hide it from them. When they went to wash [J.]s sheets, she had cut them up with scissors. He said [J.] has also been acting violently at school. She has been fighting with other children, cussing at school, and not doing her work. In addition, the caretakers report that she has also stolen items from daycare (small toys, legos) and she bullies Barbara. She has also ripped the wall paper and peeled the paint in the bedroom her and Barbara share. [The social worker] would also look into getting mental health services for [J.], based on the above behaviors.

Meanwhile, the department described Barbara as still too young to attend school and likes to play with dolls.

By the end of 2005, the parents had made minimal progress towards reunifying with any of their children. Consequently, in January 2006, the superior court terminated reunification services and set permanency planning hearings pursuant to section 366.26 for each of the children.

In advance of the section 366.26 hearing originally scheduled for late May 2006, the department prepared social studies for each of the children. By this point, only the twins and one older brother lived in the same placement. The other five children, including Barbara, were in separate placements. Notably, J.s behavioral problems led the foster parents in late April 2006 to ask that she be removed from their home. Her destructive behaviors had continued since the fall of 2005. More recently, J. had also held Barbara and cut her hair as well as made Barbara the target of her anger.

However, the foster parents remained fully committed to adopting Barbara who had no reported problems. Notably, the department reported that if for some reason the court did not terminate parental rights to Barbara, her foster parents were not interested in providing for Barbara either by way of legal guardianship or long-term foster care. Consequently, the department recommended that the court find Barbara adoptable and order parental rights terminated.^[3]

On the subject of the parent/child relationships, the department reported that since October 2005, the parents had attended only 5 out of 27 possible visits with their children. Nonetheless, three of their older children were adamant that they wished to maintain their relationships with their parents. J. appeared conflicted and confused about the prospect of not maintaining contact with her parents. Thus, the department took the position that termination would be detrimental to these four children.

With regard to Barbara, the department reported:

Barbara was removed from her birth [parents] and family at the age of two. Barbara has also expressed she would like to be adopted and live with her current foster family forever. Barbara has referred to her foster parents as, mommy and daddy, and by their first names. Likewise, Barbara has referred to her birth mother as, mommy, and by her first name. During visitation, Barbara appears to enjoy the time she spends with her [birth parents] and family. However, Barbara currently looks to her current caretakers for all of her physical and emotional needs and sees them as the primary parental figures in her life. Furthermore, there is not significant evidence to suggest a substantial attachment exists between Barbara and her [birth parents]. As such, it appears the birth [parents] [have] assumed more the role of a, friendly visitor, in Barbaras life. Barbaras caretakers have indicated they will not pursue post-adoptive contact with the birth [parents]. If Barbara were freed for adoption, it is likely she would initially miss the presence of her birth [parents] and birth family in her life. However, this loss would untimely be offset by the benefits of a permanent adoptive home. As a result, it is recommended that the [birth] mothers parental rights be terminated and that the child, Barbara [H.], be freed for adoption.

The twins meanwhile looked to their foster parents as their primary parental figures. They had been placed with their foster parents since infancy.

On the subject of sibling contacts, the department reported that in addition to the visits the children previously shared with their parents, several of the caretakers took the initiative of scheduling outside sibling visits which were undocumented. The record is silent as to whether Barbara was involved in these additional visits.

As to continued contact after adoption, the department expressed the view that if possible, sibling visitation would give Barbara and the twins, specifically, the opportunity to develop sibling relationships. If such visitation were not possible, the department offered the opinion that the benefits of a permanent adoptive home would outweigh the benefits of maintaining sibling contact. The twins and the older brothers prospective adoptive parents had expressed a desire to maintain regular sibling contact. By contrast, Barbaras prospective adoptive parents did not plan to immediately pursue sibling contact. They did plan, however, on raising Barbara with the knowledge of all of her siblings and being adopted. When she was older, they would consider initiating contact with the siblings.

The older siblings generally expressed their displeasure with the thought of either Barbara being adopted or not being able to visit with her. The twins were too young to interview. Meanwhile, a department social worker interviewed four-year-old Barbara twice in the spring of 2006. The following are descriptions of those interviews.

During her first interview, when asked where she would live if she could live anywhere in the world, [Barbara] responded, here, referring to her foster home. When asked who she would live with if she could live with anyone in the world, she responded by smiling and shrugging. Barbara reported she liked living in her current home and referred to her caretakers as, mommy and daddy. It was explained to her that her foster mommy and daddy wanted to adopt her and have her live there forever. When asked if she wanted to live there forever she responded, yes. When Barbara was asked about her visits with her birth family, Barbara stated she, likes visits. Barbara was then asked who she liked visiting with most. Barbara responded by giving her birth parents first names. Barbara was also asked if she liked visiting with her brothers and sisters and she nodded, yes, and smiled. It was next explained to Barbara that if she were adopted by her foster parents she would not have more visits with her [birth] parents, which were named, or her brothers and sisters. Barbara was asked how she would feel if she did not have anymore visits with her birth parents or her brothers and sisters, Barbara responded by smiling and shrugging. It was then reiterated to her that her foster mommy and daddy wanted to adopt her and have her live [there] forever, but that if she were adopted she would not see her birth parents, which were named, or her brothers and sisters any more. Barbara was then asked if she would still want to be adopted and live there forever even if she did not have any visits with her birth family anymore. Barbara responded by smiling and saying, yes.

Barbara was upset and crying at the beginning of the [second interview] and asked for her uncle. It was later clarified with the foster father that Barbara was referring to his brother who also has children at that preschool and had visited the preschool that day. As a result, Barbara was less cooperative with the interview process. After she calmed down, she was again asked if she liked visiting with her [birth] parents, brothers and sisters, and she responded, yes. Barbara was then asked who she liked seeing at the visits and she stated, family. Barbara was next asked if she could live anywhere in the world, where would she live and she responded by naming her caretakers. Barbara was asked if she could live with any in the whole world, who would she live with. Barbara did not respond. It was explained to Barbara that her current caretakers wanted to adopt her and to have her live with them forever. It was also explained that if she were adopted and lived with them forever, she would not have anymore visits with her birth mom and dad, who were named, or her brothers and sisters. Barbara was then asked how she felt about that. Barbara did not respond and appeared disinterested.

The parents submitted on all of the departments recommendations in each childs case, except for Barbaras. However, at a section 366.26 hearing eventually held in August 2006, neither parent had any evidence to present. Indeed, all of the parties including the children submitted the matter on the departments social studies.

Counsel for each parent nonetheless urged the court to find that termination of their rights would be detrimental to Barbara. They argued statutory exceptions based on the parent/child relationship and the sibling relationship applied in her case. Barbaras attorney argued that it was a close case regarding the parent/child relationship exception and an extremely close case regarding the sibling relationship so that he would come down at least slightly in favor of the Court finding that the (c)(1)(E) exception does apply.

Upon submission, the superior court concluded it did not find that either of the exceptions applied in Barbaras case. Having found it likely Barbara would be adopted, the court terminated the parents rights to her.

DISCUSSION

Appellant contends the court erred when it declined to find termination would be detrimental to Barbaras best interests. Appellant claims she was entitled to such a finding because: (1) she had maintained regular visitation and contact with Barbara who would benefit from continuing the relationship ( 366.26, subd. (c)(1)(A)); and (2) termination would substantially interfere with her sibling relationship. As discussed below, we disagree with each of appellants contentions.

Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the child is likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)

Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) It is the parents burden to show that termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence but whether the juvenile court abused its discretion. (Id. at p. 1351.) On review of the record, we find no abuse of discretion.

Section 366.26, subdivision (c)(1)(A)

Appellants argument under section 366.26, subdivision (c)(1)(A) fails because in fact she did not maintain regular visitation and contact with Barbara throughout her dependency. Although appellant regularly visited all of her children in the early stages of their dependency, her participation in visits dropped off precipitously, commencing in November 2005. Out of 27 visitation opportunities, appellant availed herself of only 5. Moreover, there was no evidence that appellants relationship with Barbara would promote the childs well-being to such a degree that it would outweigh the well-being Barbara would gain in a permanent home with her adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Thus, we conclude there was no basis for a section 366.26, subdivision (c)(1)(A) argument, much less such a finding.

Section 366.26, subdivision (c)(1)(E)

The so-called sibling relationship exception in section 366.26, subdivision (c)(1)(E), requires the court to find:

There would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption.

In this case, as summarized above, there is very little evidence regarding Barbara, let alone the nature and extent of her relationship with her siblings. The record is silent regarding the factors spelled out in the sibling relationship exception. Besides visits with her siblings, which Barbara apparently enjoyed, the most concrete information the record reveals about Barbaras sibling relationship is unfortunately unfavorable. We know that after the department placed Barbara and her older sister J. together in the same home, J. bullied and targeted her anger towards Barbara. In addition, although Barbaras other older siblings wished for continued contact with her, such evidence says more about their perceived relationships with her than it does about her relationship with them.

To the extent appellant relies on the closing argument by Barbaras attorney, such reliance adds little to appellants claim of error. First, as the childs attorney, counsel was required to interview Barbara to determine her wishes and assess her well-being as well as advise the court of her wishes. ( 317, subd. (e).) Notably, counsel did not advise the court of her wishes. Given the record of the departments earlier interviews of Barbara, a reasonable inference to be drawn from counsels silence was that Barbara wished to remain with her prospective adoptive parents. Second, counsels argument is not evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 414.)

As the California Supreme Court explained in In re Celine R., supra, 31 Cal.4th at page 61:

the sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a compelling reason for concluding that the termination of parental rights would be detrimental to the child due to substantial interference with a sibling relationship. (In re Daniel H. [(2002)] 99 Cal.App.4th [804,] 813, quoting 366.26, subd. (c)(1).)

Here, given the lack of any substantive evidence about the nature and extent of Barbaras relationship with her older siblings, it was incumbent upon appellant to introduce such evidence to order to carry her heavy burden. Having failed to do so, she is in no position now to argue the superior court erred.

Finally, as the Celine R. court added,

even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. (In re Celine R., supra, 31 Cal.4th at page 61.)

Thus, assuming for the sake of appellants argument a strong sibling relationship in fact existed, we would still find no error. The court knew that Barbaras prospective adoptive parents were not interested in either legal guardianship or long-term foster care. Thus, this factor, along with Barbaras young age, added even greater weight to the balancing in favor of her adoption.

DISPOSITION

The order terminating parental rights is affirmed.

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^*Before Harris, Acting P.J., Levy, J., and Cornell, J.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Eventually starting in November 2005 as the department attempted to enforce drug testing, the parents began not scheduling visits.

^[3] The department reached the same conclusions and made the same recommendations as to the twins and the older brother who were in the same placement.